ObamaCare and the Constitution

Tue, 07/19/2011 - 11:35amLance McMillian

The Framers of the Constitution created a federal government of limited, enumerated powers. In the words of James Madison, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

Throughout the country, federal courts are presently considering whether this original design has any remaining viability. The question before these courts asks: Is Obamacare constitutional?

Regulation of economic transactions, of course, is unremarkable, and Article I of the Constitution gives Congress the power “to regulate Commerce ... among the several States.”

Obamacare, however, goes far beyond garden-variety regulation. The law’s centerpiece, the much-maligned individual mandate, compels every American – at the risk of criminal penalties – to purchase health insurance from an insurance company. And therein lies the rub.

It is one thing to regulate all those who choose to engage in an economic activity; it is another thing entirely to force an individual to engage in a particular economic activity in the first place against that person’s will.

Such a shift dramatically alters the nature of congressional power under Article I. The power to regulate something already in existence becomes the power to compel something into existence.

Even the laws we typically conceptualize as mandatory are different than the individual mandate in critical respects. Yes, everyone must pay taxes, but only if they choose to earn an income. Yes, everyone must buy auto insurance, but only if they choose to drive. Yes, criminal law details a whole host of things we cannot do, but it does not say that there are things we have to do.

Obamacare, on the other hand, directs this: Simply by being alive, each of us must do business with an insurance company. This total deprivation of choice is unprecedented in American law and constitutes a form of coercion that poses a significant threat to individual liberty.

Allowing the federal government to exercise this type of unconstrained power removes any pretense that the Constitution limits the reach of Congress in any real way. Words have meaning, and danger looms for all Americans when politicians and judges cast aside the plain meaning of words for short-term, partisan ends.

If the text of the Constitution can blithely be ignored in this way, then it follows that placing faith in that document to safeguard our civil liberties is a grave miscalculation. Our rights devolve to only those that the Supreme Court allows us to have. When this happens, the rule of law gives way to the shifting rule of five-justice majorities on the Court.

And that brings us back to Obamacare. The highly politicized manner that accompanied its passage likely dooms any effort to reach consensus on its constitutionality as the merits of the law have long ceased to matter.

Still, there is hope. Despite the many differences between liberals and conservatives, the two sides do share a distrust of government overreach that sometimes – albeit all too infrequently – overlaps. Perhaps the vast tentacles of Obamacare can awaken this common fear to produce an unexpected unity.

The chief discomforts with the new healthcare law need not – and indeed, will not – be the same. For the conservative, allowing Obamacare to stand would remove any constitutional constraint on centralized regulation as well as obliterating any pretense of state autonomy.

For the liberal, permitting government the power to mandate that every person enter into a contractual relationship with insurance companies gives enormous power to big business at the expense of individuals, especially those presently without insurance on the lower end of the economic ladder.

While the sources of uneasiness in these respective critiques differ and reflect the competing ideological concerns in the liberal and conservative worldviews, both analyses reach the same conclusion: this law goes too far.

The Constitution ultimately protects all of us from the strong hand of government. While we may disagree over the exact contours of these constitutional safeguards, Americans of all political stripes agree that (a) there should be meaningful limits on government and (b) the Constitution should supply these limits.

The individual mandate, however, mocks both of these baseline premises. A federal government that can force its citizens to engage in particular activities is a government unrestrained by the words of the Constitution. Power and politics – not the rule of law – become the order of the day.

Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]

"Obamacare" is a word made up by the right wing opponents of health care reform. If you want to be taken seriously in a discussion on the subject, do not use the term "Obamacare."

Contrary to what Mcmillan states there is no criminal penalty for failing to purchase health insurance. There is a tax penalty--and a modest one at that.

Obama's health care reform is not a threat to our liberty. That is absurd. Reform helps put health care within reach of most Americans. And most Americans understand that despite the fear mongering from the far right.

your life that you want reversed? For me, my college kids are now included on my healthcare policy for which I pay premiums. Where is the problem?

There is an individual rate, a married rate, and a family rate. If I am Michelle Bachmann with 15 dependents or a family of 5, the premiums are the same. So what is the problem you have with my college kids being covered as family until 26, while they try to fight the 9+% unemployment rate by gaining employment?

I don't think anyone on this board has a problem with your kids on your insurance policy. It's the problem of covering an unknown number of unfunded subscribers in the future as Obamacare is further unrolled. Current events dictate that we can not afford another $100 billion added to each year's budget for the next 10 years.

Caution - The Surgeon General has determined that constant blogging is an addiction that can cause a sedentary life style.

answer and I would add that we simply don't need government in healthcare, it has pretty much screwed up everything it has touched. Tell me one program the government has started that hasn't runway with more money than was projected on the front end. Not one exists.

Finally, why should we pay for a service we don't want? We shouldn't in a free society.

you pay for services you don't want all the time! You don't play golf, but if you stay at the Marriott with a golf course, you are paying for it! Do you demand that Marriott take the cost of the golf course off your bill. If you don't use the shampoo, soap, and coffee machine in the room, do you raise a stink in the lobby and demand that it be taken off your bill because you don't want it or didn't use it? If you use only one towel, do you make them adjust the bill because there were four in the room? Or, do you double up with Cal at the Motel Six when you are traveling? Do you demand that your meals at McDonalds be discounted because you don't use the play area? You are not the only person on the planet! The rest of us are not here to serve your distorted view of reality! After the bogus debt ceiling issue fades and the Rapture does not happen, what doomsday scenario will you latch on to next? The mother ship is waiting for you at K-Mart parking lot! Howard Ruff and Gary North will be on it!

world is free choice too, right? There are plenty of places you could live and not pay any taxes at all! However, you want everything to change to fit your utopian vision! Mao tried that once too! You want to force the rest of us to live under your low-tax dirty linen Motel Six model! Government is a function of the market! You get what you vote for! I used to be a mom's boy, but she is long gone from this world, Dad too!. RIP!

On the contrary I don't want anyone to live under someone that has a Utopian vision, I think we can reserve this imaginary feat to the statists, or those that support statism, like you.

Being a mama's boy is a frame of mind Ninja, not a slam on your departed mom. I suppose though you need someone to make your decisions for you or you wouldn't want government to do it.

On the other hand maybe there is simply self-interest involved in your desire to keep the state growing. "Just about right", I think this was your Goldilocks expression.

If so, I hope you are looking for that job in private industry, because you're about to be RIF'd from the government dole pal. Then you can actually feel the pain of the worker class over the last few years.

to handle for employ by any organization, public or private. The Ninja flies strictly solo! I have too many kids to ever retire! Our form of government and level of intervention thereby is a product of the market principles you espouse but do not really believe in--the coming cutbacks included. Got that doomsday shelter step up for wireless Internet yet? You and OOFU will have much to discuss barricaded in there while civilization collapses next week!

I think David Boaz said it best when talking about people like you Ninja:

"There are still plenty of people seeking to take our liberty, to force us into collectivist schemes, to promise us security or handouts in return for our freedom, or to impose their agendas on the rest of us."

is the one you give yourself! I am the most rugged individualist in PTC! David Boaz is one of those libertarian drug legalizing guys! The 60s are over! The real Cato would not share the same continent with him!

Tired of reading the same old stuff on the Citizen and its sister publication the Wall Street Journal, I flipped over to an oldie but goody--Rolling Stone! Here is a good article about the Tea Party faithful. Entertaining if nothing else!

Gosh, you would think a stalwart of the Teaparty would should at least a bit of integrity, at least in public! This is from last year, but I think it sums things up pretty well!.

From various news services:

"But on Thursday evening, the ophthalmologist from Bowling Green said there was one thing he would not cut: Medicare physician payments.

In fact, Paul â€” who says 50% of his patients are on Medicare â€” wants to end cuts to physician payments under a program now in place called the sustained growth rate, or SGR. â€œPhysicians should be allowed to make a comfortable living,â€ he told a gathering of neighbors in the back yard of Chris and Linda Wakild, just behind the 10th hole of a golf course."

No I like the military, it is necessary for the defense of the country from foreign invasion by socialist "visionaries" like Hitler, Stalin, Tojo, etc.

However, with that said the military like everything else the government runs is run poorly, that's why it costs so much.

I support the ending of all entitlement programs that transfers wealth from one group of people to another group of people. Citizen's should keep their money and use it the way they want to use it.

Roads, should all be toll roads or paid for through gasoline taxes.

"Safety" departments like the FDA should be run by private enterprise through voluntary associations to avoid extra costs brought on by lawsuits. There are still a few examples of how this now works by looking at United Laboratories (UL) and National Sanitation Foundation (NSF), there are many more.

[quote]Tell me one program the government has started that hasn't runway with more money than was projected on the front end. Not one exists.[/quote]

Not just in government run projects, but in 99% of projects, from a kitchen remodel to a brand spanking new private enterprise filthy coal burning electricity generating plant. Those without minds of the liberal persuasion take minor details and extrapolate them until they are totally out of proportion to reality.

Cost over runs when they come out of your pocket for projects you want are fine with me, you choose the project, the contractor, and make the decision to finish the job or not.

Government does run this way, it chooses the project (against your will), it chooses the contractor, and if the job is running over budget it steals what it needs from you the taxpayer or their children using debt.

Can you distinguished these two quite different scenarios?

In a free market, unlike government, you take care of your money because it's yours, when it is "free" to the government it spends it like drunken sailors.

[quote]In a free market, unlike government, you take care of your money because it's yours, when it is "free" to the government it spends it like drunken sailors.[/quote]

So, it seems to the carbonunit that "wasted money", such as stimulus funded unemployment compensations, become sanctified when they are spent and deposited in a "producers" bank account, and the flow can rightously stop there.

" Current events dictate that we can not afford another $100 billion added to each year's budget for the next 10 years."

And yet, we can afford to continue subsidizing oil companies, ethanol, etc? If you pay attention to the anti Affordable Health Care Act crowd, this is their version of reality. Say we are out of money, yet refuse to end subsidies or close tax loopholes. But here is where this train of thought jumps the tracks.

"the problem of covering an unknown number of unfunded subscribers in the future as Obamacare is further unrolled."

For there to be additional cost to the government in covering folks currently without health care insurance, you have to assume these people are not currently a financial burden to the state and federal government. The dirty secret (which is no secret at all) is this: People who get sick go to the ER and get the most expensive form of care we have. And that costs the government RIGHT NOW. This is no secret. ERs don't turn away the sick because they don't have insurance. They treat them.

This is precisely why The Affordable Health Care Act does not bankrupt America. This is pure GOP misinformation. And I am amazed how many ordinary folks have bought into this fallacy.

Moving the uninsured out of ERs and into health care insurance pools REDUCES the cost of the care they ALREADY get.

[quote=kevink]" Current events dictate that we can not afford another $100 billion added to each year's budget for the next 10 years."

And yet, we can afford to continue subsidizing oil companies, ethanol, etc? If you pay attention to the anti Affordable Health Care Act crowd, this is their version of reality. Say we are out of money, yet refuse to end subsidies or close tax loopholes. But here is where this train of thought jumps the tracks.[/quote]

Then why are you not yelling for closing the loopholes, where are the Democrats on this where are the bills? Where is anything but Rhetoric?

I noticed you added Ethanol to the list this is a true subsidy but remember once you remove the incentives from business to be able to write off expenditures we will spend less. Economy will stagnate further. Prices will rise. Inflation results.

[quote]For there to be additional cost to the government in covering folks currently without health care insurance, you have to assume these people are not currently a financial burden to the state and federal government. The dirty secret (which is no secret at all) is this: People who get sick go to the ER and get the most expensive form of care we have. And that costs the government RIGHT NOW. This is no secret. ERs don't turn away the sick because they don't have insurance. They treat them.[/quote]

No kevin the real dirty secret is that there is no healthcare crisis. Just like you said the uninsured already get Medical care. Thanks for finally admitting it. The "cure" would have been to address these Americans not force an entire population to endure a screwed up Government bureaucratic nightmare at the cost of a Trillion dollars plus.

[quote]This is precisely why The Affordable Health Care Act does not bankrupt America. This is pure GOP misinformation. And I am amazed how many ordinary folks have bought into this fallacy.[/quote]

No kevin your simplistic response is indicative of a progressive who believes we can spend in perpetuity.

It's the spending stupid.

They always said your house is your BEST investment so buy more house then you can really afford. How did that work out?

The SPENDING necessary to implement and maintain is what we cannot afford.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

Because uninsured people pour into emergency rooms and get the most expensive treatment possible, it is your opinion that there is no health care crisis. Well, you may want to grab a seat. Enough senators and congressmen disagreed with you to vote The Affordable Healthcare Act into law. Our President signed it. My kids are covered. Not even tea party ideologes can be dropped from their policies due to pre-existing conditions. It's the law of the land. Deal with it. Can't wait to hear you moan when the Bush tax cuts die.

The why is kevin my little spend and tax buddy is that it's a boondoggler of Government bureaucratic bs.

Let's look at some facts:
1. According to Obama we have 30 million uninsured.
[quote=Obama]"Obama, Sept. 9: There are now more than 30 million American citizens who cannot get coverage."[/quote]

Now according to the left leaning Kaiser group this includes 10 Million Illegal Aliens. Even they admit Obama wanted to cover Illegal Immigrants.

[quote=Kaiser Group]The numbers do work, as long as you include uninsured non-citizens who are in the country legally to arrive at the final number. Of course "legal immigrants" are not "citizens," which is the word Obama used in his speech. But Obama has made no secret of his support for providing health care benefits for legal non-citizens.[/quote]

2. Now if you subtract those and according to the same study approx 50% of the uninsured are those that opt out. The Young under the age of 25. That leaves us with 10 Million uninsured due to economic reasons. The same study also noted that a little more than half actually use some sort of taxpayer subsidized care about twice per year.

Now that gives us approx 6 Million people that need and use taxpayer subsidized healthcare.
Take into account that the average ER visit cost $1265 per visit that means that on average that each individual uses about $2500 per year in un-paid services for which Hospitals write off.

Kevin now you have stated that it was not the TRILLION dollars spent on Universal Healthcare.
[quote=kevink]
For there to be additional cost to the government in covering folks currently without health care insurance, you have to assume these people are not currently a financial burden to the state and federal government. The dirty secret (which is no secret at all) is this: People who get sick go to the ER and get the most expensive form of care we have. And that costs the government RIGHT NOW. This is no secret. ERs don't turn away the sick because they don't have insurance. They treat them.
This is precisely why The <strong>Affordable Health Care Act does not bankrupt America.</strong> This is pure GOP misinformation. And I am amazed how many ordinary folks have bought into this fallacy.[/quote]

But the cost associated with covering the uninsured.

You logic does not follow. If it cost us a TRILLION dollars to cover approx 6 million people that cost on average $3000 per year how then is the cost of the uninsured was therefore bankrupting American and not the AHCA?

You see kevin numbers don't lie people do. People that use them to boaster illogical arguments for ideological purposes.

"Neither the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt"
-Samuel Adams
Illegitimi non carborundum

OofU, it had to be mandated to increase the size of the risk pool and lower the cost per unit. This was a prerequisite of the private insurance companies before negotiations even began.

The parliamentary tricks youâ€™re complaining about were the same ones used by Republicans to pass the â€œNation Busting Bush Tax Cuts.â€

I hear a lot of complaining about AHCA but most of it is generated by paid insurance lobbyist and think tanks, fed though Faux News and right wing Talk, Talk, Talk Radio personalities, to Astroturf â€˜angry mobâ€™ organizations like the TeaParty, eh?

Since youâ€™re the answer man about AHCA, could you tell us how many American lives it might save?

Remember: If you think Social Security and Medicare are worth saving, vote Democratic.

[quote]how then is the cost of the uninsured was therefore bankrupting American and not the AHCA?[/quote]

AHCA goal is to prevent health problems. Preventive medicine means fewer visits to hospitals. The high cost involves what hospitals are charging! I hope you are fortunate not to have a current hospital bill. . . but if you have a chance to look at one, check the cost of a band aid. While hospital costs are brought within reason, we need to take steps to make our citizens healthier. Numbers don"t tell the entire story, that's why we have analysts.

There are studies that have been done by non-partisan groups that "preventative medicine" in many cases actually raises health care costs by sending MORE people to hospitals for care they may not need. Here is most often cited one that was done by the New England Journal of Medicine:

People often forget that "preventative medicine" became a big idea when health care shifted strongly to HMO's a while back and HMO's touted this as a "great thing" with low or no co-pays. Instead, what it brought was 15 minute DR appointments in a cattle call waiting room that can be totally unnecessary or an avenue for writing endless amounts of prescriptions for any ailment real or imagined, as well as sending someone elsewhere for "tests" after a few minute conversation.

I understand what you're pointing out. Where are the studies of the cost of drugs, hospital equipment, hospital maintenance, hospital administration, etc., etc., etc.? Insurance pays what the hospital charges. The days when doctors became millionaires are over (except for specialists, especially plastic surgeons). The doctors I know are working their butts off, seeing an inordinate amount of patients daily to maintain a 'life style'. (And today's young doctors don't have the biggest car or house in the neighborhood). In the war against anything Obama, let's don't belittle the attempt to improve the health of American citizens. Today, there are so many diseases if identified early that can be cured. Most important, through appropriate health care, many illnesses can be prevented. With health care available to citizens, we will be a stronger nation. I feel the legality of making not having insurance a criminal act will be handled in the courts. Improving health care in America is important. Improving the health care act is wisdom, repealing it is politics. A lot of money was spent on the dispensation of the polio vaccine. We don't have to spend that money today. Hopefully, someday they will be able to say that about cancer.

For instance, people like to say that the majority of Americans were against the Affordable Health Care Act. They liked being kicked off of policies. They enjoyed uninsured life in ERs. They did not want their kids on the health care plans they already paid for.

The secret, which you fail to disclose, is many people wanted it to be UNIVERSAL; Single Payer; Medicare for all.

It's amazing how Tea Partiers love their medicare. Amazing. Anyway, mate. It's still the law. You can type until your fingers are raw. It is not going away anytime soon.

I'm out here in toasty Tulsa. Anyways, about that AHA thingy; I know what your saying about emergency rooms expense but remember, this act is a jobs bill plus the HHS Secretary - AKA Healthcare Czar - has the power to fund any number of healthcare "levers". Remember it was the President and the rest of his merry band that was touting the fact that AHA will only cost a little less than a trillion over 10 years.

BTW, did you see that the Healthcare Czar announce that birth control, breast-pumps, yearly physicals, and other preventive services for women have to be provided with no co-pays. Insurance subscribers - that's you and me - will of course pay for this. I have just a little hunch that the Czar is not done making changes - some which that could be motivated by politics.

Caution - The Surgeon General has determined that constant blogging is an addiction that can cause a sedentary life style.

issues before your concern shifted to an aunt of the president. As for your above concerns, I suggest you bring them up with bloggers with breasts and or a uterus. They would be imenently more qualified to discuss the importance of said medical issues.

Don't wait. I know they don't check this during your annual flight fitness physical so you get yourself down to the regular doc and <strong>get this check done</strong>. The American Cancer Society recommends the old finger wave and a PSA starting at 40. Kevin you can ignore all my other posts and or call me a ranting right wing tea party sympathizer; but please get this done.

Caution - The Surgeon General has determined that constant blogging is an addiction that can cause a sedentary life style.